To amend the Federal Water Pollution Control Act to
improve and reauthorize the Chesapeake Bay Program.

1.

Short title

This Act may be cited as the
Chesapeake Clean Water and Ecosystem
Restoration Act of 2009.

2.

Findings

Congress finds that—

(1)

the Chesapeake Bay
and the tributary waters of the Chesapeake Bay are natural resources of
outstanding ecological, economic, and cultural importance to the United
States;

(2)

for more than 20
years, the Federal Government and the States of the Chesapeake Bay Watershed,
the Chesapeake Bay Commission, and various local government, scientific, and
citizen advisory boards have worked through the Chesapeake Bay Program of the
Environmental Protection Agency to develop an unparalleled body of scientific
information and cooperative partnerships to advance the Chesapeake Bay
restoration effort;

(3)

despite
significant efforts by Federal, State, and local governments and other
interested parties, water pollution in the Chesapeake Bay prevents the
attainment of existing State water quality standards and the ecological goals
of the Federal Water Pollution Control
Act (33 U.S.C. 1251 et seq.);

(4)

the Chesapeake Bay
Program partnership has developed a rich body of environmental data based on an
extensive network of monitors, which provide a critical measure of success in
attainment of the goals of the restoration effort;

(5)

the Chesapeake Bay
Program partnership has also developed some of the world’s foremost water
quality and ecosystem computer models, which are invaluable planning tools for
resource managers;

(6)

the major
pollutants affecting the water quality of the Chesapeake Bay and related tidal
waters are nitrogen, phosphorus, and sediment;

(7)

the largest
developed land use in the Chesapeake Bay watershed, and the largest
single-sector source of nitrogen, phosphorus, and sediment pollution, is
agriculture;

(8)

successful
implementation of conservation practices have resulted in significant
reductions in pollutant loads from the agricultural sector;

(9)

to speed continued
progress in the agricultural sector, the Federal Government and State
governments have initiated a number of agricultural conservation programs,
including the Chesapeake Bay watershed initiative under section 1240Q of the
Food Security Act of 1985 (16 U.S.C. 3839bb–4);

(10)

atmospheric
deposition of nitrogen oxides and ammonia on the Chesapeake Bay watershed
contributes as much as 1/3 of the nitrogen pollution in
the Chesapeake Bay;

(11)

for years, a
steady stream of technology development and increasingly stringent permit
requirements have resulted in a steady decline in the nitrogen and phosphorus
pollution derived from wastewater treatment plants in the Chesapeake Bay
watershed;

(12)

suburban and
urban development is the fastest growing land use sector in the Chesapeake Bay
watershed, and stormwater runoff from that sector is the only major source of
pollution in the watershed that is increasing;

(13)

during the period
beginning in 1990 and ending in 2000, impervious cover, the hardened surfaces
through which water cannot penetrate, increased by nearly 250,000 acres, about
41 percent, or the size of 5 Districts of Columbia;

(14)

during that
period, the population of the Chesapeake Bay watershed grew by just 8
percent;

(15)

the population of
the watershed is estimated to be growing by about 157,000 people per
year;

(16)

continuing at
that rate, the population will increase to nearly 20,000,000 by 2030;

(17)

about 58 percent
of the watershed of the Chesapeake Bay is undeveloped and mostly forested, but
as many as 100 hundred acres of forest are lost to development each day;

(18)

States, local
governments, developers, and nonprofit organizations have developed numerous
low-impact development techniques since the late 1990s, which use natural area
protection, en­vi­ro­tran­spi­ra­tion, infiltration, and pervious surfaces to
reduce stormwater runoff and associated sediment and nutrient pollution;

(19)

many of those
techniques are less expensive than traditional stormwater management
techniques, yet can achieve equivalent reduction in nutrients and sediment or
can reduce the need for construction of traditional stormwater management
techniques;

(20)

the decline of
key aquatic habitats and species has resulted in a loss of the important water
quality benefits that the habitats and species traditionally provided;

(21)

native oysters,
the numbers of which have declined precipitously in the Chesapeake Bay in
significant part because of diseases brought into the watershed by nonnative
oysters, are natural filters that once effectively filtered a volume of water
equivalent to that of the entire Chesapeake Bay in a matter of days;

(22)

although less
well-understood, menhaden, a species of fish found in the Chesapeake Bay, also
provide important filtering capacity as well as a number of other key ecosystem
functions;

(23)

wetlands are a
vital part of any major ecosystem;

(24)

studies have
demonstrated that nontidal wetlands near the Chesapeake Bay removed as much as
89 percent of the nitrogen and 80 percent of the phosphorus that entered the
wetlands through upland runoff and precipitation;

(25)

riparian forests
remove as much as 90 percent of nitrogen and phosphorus that would otherwise
enter the water;

(26)

the loss of
riparian forests and wetlands in the Chesapeake Bay has resulted in diminished
water quality, among other effects;

(27)

in certain
locations in the Chesapeake Bay, nutria, a nonnative species, has caused
extensive destruction of key wetlands; and

(28)

in spite of the
achievements of the Chesapeake Bay Program partnership and increasing knowledge
about ecosystem functions, the restoration of the Chesapeake Bay will require
increased accountability and equity in reducing pollutant levels and other
impediments to water quality.

3.

Chesapeake Bay
Program

Section 117 of the
Federal Water Pollution Control Act (33 U.S.C. 1267) is amended to read as
follows:

117.

Chesapeake Bay
Program

(a)

Definitions

In
this section:

(1)

Administrative
cost

The term administrative cost means the cost of
salaries and fringe benefits incurred in administering a grant under this
section.

(2)

Asian
oyster

The term Asian oyster means the species
Crassostrea ariakensis.

(3)

Baseline

The
term baseline means the basic standard or level used for measuring
(as applicable)—

(A)

the nutrient
control requirements credit sellers must achieve before becoming eligible to
generate saleable nutrient credits; or

(B)

the nutrient load
reductions required of individual dischargers to meet water quality standards
or goals under a TMDL or watershed implementation plan.

(4)

Basin
commissions

The term basin commissions means—

(A)

the Interstate
Commission on the Potomac River Basin established under the interstate compact
consented to and approved by Congress under the Joint Resolution of July 11,
1940 (54 Stat. 748, chapter 579), and Public Law 91–407 (84 Stat. 856);
and

(B)

the Susquehanna
River Basin Commission established under the interstate compact consented to
and approved by Congress under Public Law 91–575 (84 Stat. 1509), and Public
Law 99–468 (100 Stat. 1193).

(5)

Chesapeake Bay
Agreement

The term Chesapeake Bay Agreement means
the formal, voluntary agreements executed to achieve the goal of restoring and
protecting the Chesapeake Bay ecosystem and the living resources of the
Chesapeake Bay ecosystem and signed by the Chesapeake Executive Council.

(6)

Chesapeake Bay
ecosystem

The term Chesapeake Bay ecosystem means
the ecosystem of the Chesapeake Bay watershed.

(7)

Chesapeake Bay
Program

The term Chesapeake Bay Program means the
program directed by the Chesapeake Executive Council in accordance with the
Chesapeake Bay Agreement.

(8)

Chesapeake Bay
State

The term Chesapeake Bay State means any
of—

(A)

the States of
Delaware, Maryland, New York, or West Virginia;

(B)

the Commonwealths
of Pennsylvania or Virginia; or

(C)

the District of
Columbia.

(9)

Chesapeake Bay
watershed

The term Chesapeake Bay watershed means
the Chesapeake Bay and the area consisting of 19 tributary basins within the
Chesapeake Bay States through which precipitation drains into the Chesapeake
Bay.

(10)

Chesapeake
Executive Council

The term Chesapeake Executive
Council means the signatories to the Chesapeake Bay Agreement.

(11)

Cleaning
agent

The term cleaning agent means a laundry
detergent, dishwashing compound, household cleaner, metal cleaner, degreasing
compound, commercial cleaner, industrial cleaner, phosphate compound, or other
substance that is intended to be used for cleaning purposes.

(12)

Director

The
term Director means the Director of the Chesapeake Bay Program
Office of the Environmental Protection Agency.

(13)

Local
government

The term local government means any
county, city, or other general purpose political subdivision of a State with
jurisdiction over land use.

(14)

95th percentile
precipitation event

The term 95th percentile precipitation
event means a precipitation event whose precipitation total is greater
than or equal to 95 percent of all 24-hour storm events on an annual
basis.

(15)

Point-of-regulation

The
term point-of-regulation means any entity that—

(A)

is subject to a
limitation on pollution or other regulation under this Act; and

(B)

has sufficient
technical capacity and legal authority to meet the obligations of the entity
under this Act.

(16)

TMDL

(A)

In
general

The term TMDL means the total maximum daily
load that the Administrator establishes or approves for nitrogen, phosphorus,
and sediment loading to the waters in the Chesapeake Bay and tidal tributaries
identified on the list of a Chesapeake Bay State under section 303(d).

(B)

Inclusions

The
term TMDL may include nitrogen, phosphorus, and sediment
allocations in temporal units of greater than daily duration if applicable
allocations—

(i)

are demonstrated
to achieve water quality standards; and

(ii)

do not lead to
exceedances of other applicable water quality standards for local receiving
waters.

(17)

Tributary
basin

The term tributary basin means an area of land
or body of water that—

(A)

drains into any of
the 19 Chesapeake Bay tributaries or tributary segments; and

(B)

is managed through
watershed implementation plans under this Act.

(b)

Continuation of
Chesapeake Bay program

(1)

In
general

In cooperation with the Chesapeake Executive Council (and
as a member of the Council), the Administrator shall continue the Chesapeake
Bay Program.

(2)

Program
office

(A)

In
general

The Administrator shall maintain in the Environmental
Protection Agency a Chesapeake Bay Program Office.

(B)

Function

The
Chesapeake Bay Program Office shall provide support to the Chesapeake Executive
Council by—

(i)

implementing and
coordinating science, research, modeling, support services, monitoring, data
collection, and other activities that support the Chesapeake Bay
Program;

(ii)

developing and
making available, through publications, technical assistance, and other
appropriate means, information pertaining to the environmental quality and
living resources of the Chesapeake Bay ecosystem;

(iii)

in cooperation
with appropriate Federal, State, and local authorities, assisting the
signatories to the Chesapeake Bay Agreement in developing and implementing
specific action plans to carry out the responsibilities of the signatories to
the Chesapeake Bay Agreement;

(iv)

coordinating the
actions of the Environmental Protection Agency with the actions of the
appropriate officials of other Federal agencies and State and local authorities
in developing strategies to—

(I)

improve the water
quality and living resources in the Chesapeake Bay ecosystem; and

(II)

obtain the
support of the appropriate officials of the agencies and authorities in
achieving the objectives of the Chesapeake Bay Agreement; and

(v)

implementing
outreach programs for public information, education, and participation to
foster stewardship of the resources of the Chesapeake Bay.

(c)

Interagency
agreements

The Administrator may enter into an interagency
agreement with a Federal agency to carry out this section.

(d)

Technical
assistance and assistance grants

(1)

In
general

In cooperation with the Chesapeake Executive Council, the
Administrator may provide technical assistance, and assistance grants, to
nonprofit organizations, State and local governments, institutions of higher
education, basin commissions, and interstate agencies to carry out this
section, subject to such terms and conditions as the Administrator considers
appropriate.

(2)

Federal
share

(A)

In
general

Except as provided in subparagraph (B), the Federal share
of an assistance grant provided under paragraph (1) shall be determined by the
Administrator in accordance with guidance issued by the Administrator.

(B)

Chesapeake bay
stewardship grants program

The Federal share of an assistance
grant provided under paragraph (1) to carry out an implementing activity under
subsection (g)(2) shall not exceed 75 percent of eligible project costs, as
determined by the Administrator.

(3)

Non-Federal
share

An assistance grant under paragraph (1) shall be provided
on the condition that non-Federal sources provide the remainder of eligible
project costs, as determined by the Administrator.

On the request of the chief executive of a Chesapeake Bay
State, the Administrator—

(A)

shall make an implementation grant to the
Chesapeake Bay State, or a designee of the Chesapeake Bay State (such as a soil
conservation district, nonprofit organization, local government, institution of
higher education, basin commission, or interstate agency) for the purpose of
implementing an approved watershed implementation plan under subsection (j) and
achieving the goals established under the Chesapeake Bay Agreement, subject to
such terms and conditions as the Administrator considers to be appropriate;
and

(B)

may make a
monitoring grant to—

(i)

a
Chesapeake Bay State, or a designee of a Chesapeake Bay State (such as a soil
conservation district, nonprofit organization, local government, institution of
higher education, basin commission, or interstate agency), for the purpose of
monitoring the ecosystem of freshwater tributaries to the Chesapeake Bay;
or

(ii)

the States of
Delaware or Maryland, the Commonwealth of Virginia, the District of Columbia,
or a designee (such as a soil conservation district, nonprofit organization,
local government, institution of higher education, basin commission, or
interstate agency) for the purpose of monitoring the Chesapeake Bay, including
the tidal waters of the Chesapeake Bay.

(2)

Administration

In
making implementation grants to each of the Chesapeake Bay States for a fiscal
year under this subsection, the Administrator shall ensure that not less
than—

(A)

10 percent of the
funds available to make such grants are made to the States of Delaware, New
York, and West Virginia; and

(B)

20 percent of the
funds available to make such grants are made to Chesapeake Bay States for the
sole purpose of providing technical assistance to agricultural producers and
foresters to access conservation programs and other resources devoted to
improvements in water quality in the Chesapeake Bay and the tributaries of the
Chesapeake Bay.

(3)

Proposals

(A)

Implementation
grants

(i)

In
general

A Chesapeake Bay State may apply for a grant under this
subsection for a fiscal year by submitting to the Administrator a comprehensive
proposal to implement programs and achieve the goals established under the
Chesapeake Bay Agreement.

(ii)

Implementation
grant contents

A proposal under clause (i) shall include—

(I)

a description of
proposed actions that the Chesapeake Bay State commits to take within a
specified time period that are designed—

(aa)

to
achieve and maintain all applicable water quality standards, including
standards necessary to support the aquatic living resources of the Chesapeake
Bay and related tributaries and to protect human health;

(bb)

to
restore, enhance, and protect the fish, shellfish, wildlife, and other living
resources of the Chesapeake Bay and related tributaries, habitats of those
species and resources, and ecological relationships to sustain all fisheries
and provide for a balanced ecosystem;

(cc)

to
restore, enhance, and protect those habitats and natural areas that are vital
to the survival and diversity of the living resources of the Chesapeake Bay and
related tributaries;

(dd)

to
develop, promote, and achieve sound land use practices that protect and restore
watershed resources and water quality, reduce or maintain reduced pollutant
loadings for the Chesapeake Bay and related tributaries, and restore and
preserve aquatic living resources;

(ee)

to
promote individual stewardship and assist individuals, community-based
organizations, businesses, local governments, and schools to undertake
initiatives to achieve the goals and commitments of the Chesapeake Bay
Agreement; or

(ff)

to
provide technical assistance to agricultural producers, foresters, and other
eligible entities through technical infrastructure, including activities,
processes, tools, and agency functions needed to support delivery of technical
services, such as technical standards, resource inventories, training, data,
technology, monitoring, and effects analyses;

(II)

a commitment to
dedicate not less than 20 percent of a grant to a Chesapeake Bay State under
this subsection to support technical assistance for agricultural and forestry
land or nutrient management practices that protect and restore watershed
resources and water quality, reduce or maintain reduced pollutant loadings for
the Chesapeake Bay and related tributaries, and restore and preserve aquatic
living resources; and

(III)

the estimated
cost of the actions proposed to be taken during the fiscal year.

(B)

Monitoring
grants

(i)

In
general

A Chesapeake Bay State may apply for a grant under this
subsection for a fiscal year by submitting to the Administrator a comprehensive
proposal to monitor freshwater or estuarine ecosystems, including water
quality.

(ii)

Monitoring
grant contents

A proposal under this subparagraph shall
include—

(I)

a description of
the proposed monitoring system;

(II)

certification by
the Director that such a monitoring system includes such parameters as the
Director determines necessary to assess progress toward achieving the goals of
this section; and

(III)

the estimated
cost of the monitoring proposed to be conducted during the fiscal year.

(iii)

Concurrences

The
Administrator shall—

(I)

obtain the
concurrence of the Director of the United States Geological Survey regarding
the design and implementation of the freshwater monitoring systems established
under this subsection; and

(II)

obtain the
concurrence of the Director of the Chesapeake Bay Office of the National
Oceanic and Atmospheric Administration regarding the design and implementation
of the estuarine monitoring systems established under this subsection.

(iv)

Consultation

The
Administrator shall consult with—

(I)

the basin
commissions and the Chesapeake Bay States regarding the design and
implementation of the freshwater monitoring systems established under this
subsection, giving particular attention to the measurement of the water quality
effectiveness of agricultural conservation program implementation (including
geospatial agricultural conservation program data), including activities
carried out pursuant to the Chesapeake Bay Watershed Initiative under section
1240Q of the Food Security Act of 1985 (16 U.S.C. 3839bb–4);

(II)

Old Dominion
University, the Virginia Institute of Marine Science, the University of
Maryland Center for Environmental Science, and the Chesapeake Bay States
regarding the estuarine monitoring systems established under this
subsection;

A Federal agency that owns or operates a
facility (as defined by the Administrator) or carries our activities within the
Chesapeake Bay watershed shall participate in regional and subwatershed
planning and restoration programs.

(2)

Compliance with
agreement

The head of each Federal agency that owns or occupies
real property or carries out activities in the Chesapeake Bay watershed shall
ensure that the property, actions taken by the agency with respect to the
property, and the activities of the agency comply with the Chesapeake Bay
Agreement, the Federal Agencies Chesapeake Ecosystem Unified Plan, and any
subsequent agreements and plans.

(3)

Forest cover at
federal facilities

Not later than January 1, 2012, the
Administrator shall coordinate with the heads of each Federal agency that owns
or operates a facility (as defined by the Administrator) within the Chesapeake
Bay watershed to develop plans to maximize forest cover at the facility through
the preservation of existing forest cover and the development of reforestation
plans with respect to a facility that has been disturbed or developed in the
past.

(4)

Federal annual
action plan and progress report

The Administrator, in accordance
with Executive Order 12508 entitled Chesapeake Bay Protection and
Restoration and signed on May 12, 2009 (74 Fed. Reg. 23099),
shall—

(A)

make available to
the public, not later than March 31 of each year—

(i)

a
Chesapeake Bay action plan describing, in the greatest practicable degree of
detail, how Federal funding proposed in the annual budget of the United States
submitted by the President to Congress will be used to protect and restore the
Chesapeake Bay during the upcoming fiscal year; and

(ii)

an annual
progress report that—

(I)

assesses the key
ecological attributes that reflect the health of the Chesapeake Bay
ecosystem;

(II)

reviews
indicators of environmental conditions in the Chesapeake Bay;

(III)

distinguishes
between the health of the Chesapeake Bay ecosystem and the results of
management measures;

(IV)

assesses
implementation of the action plan during the preceding fiscal year;

(V)

recommends steps
to improve progress in restoring and protecting the Chesapeake Bay; and

(VI)

describes how
Federal funding and actions will be coordinated with the actions of States,
basin commissions, and others;

(B)

create and
maintain, with the concurrence of the Secretary of Agriculture, a Chesapeake
Bay-wide database containing comprehensive data on implementation of
conservation management practices in the Chesapeake Bay watershed that—

(i)

includes baseline
conservation management practice implementation data as of the effective date
of the Chesapeake Clean Water and Ecosystem
Restoration Act of 2009;

(ii)

includes data on
subsequent conservation management practice implementation projects funded by
or reported to the Administrator or the Secretary;

(iii)

presents the
required data in statistical or aggregate form without identifying any—

(I)

individual owner,
operator, or producer; or

(II)

specific data
gathering site; and

(iv)

is made available
to the public not later than December 31, 2010.

(g)

Chesapeake Bay
program

(1)

Management
strategies

The Administrator, in coordination with other members
of the Chesapeake Executive Council, shall ensure that management plans are
developed and implemented by Chesapeake Bay States to achieve and
maintain—

(A)

the nutrient goals
of the Chesapeake Bay Agreement for the quantity of nitrogen and phosphorus
entering the Chesapeake Bay and the watershed of the Chesapeake Bay;

(B)

the water quality
requirements necessary to restore living resources in the Chesapeake Bay
ecosystem;

(C)

the Chesapeake Bay
Basinwide Toxins Reduction and Prevention Strategy goal of reducing or
eliminating the input of chemical contaminants from all controllable sources to
levels that result in no toxic or bioaccumulative impact on the living
resources of the Chesapeake Bay ecosystem or on human health;

(D)

habitat
restoration, protection, creation, and enhancement goals established by
Chesapeake Bay States for wetlands, riparian forests, and other types of
habitat associated with the Chesapeake Bay ecosystem; and

(E)

the restoration,
protection, creation, and enhancement goals established by the Chesapeake Bay
States for living resources associated with the Chesapeake Bay
ecosystem.

(2)

Chesapeake Bay
Stewardship Grants Program

The Administrator, in cooperation with
the Chesapeake Executive Council, shall—

cooperative
watershed strategies that address the water quality, habitat, and living
resource needs in the Chesapeake Bay ecosystem;

(II)

locally based
protection and restoration programs or projects within a watershed that
complement the State watershed implementation plans, including the creation,
restoration, or enhancement of habitat associated with the Chesapeake Bay
ecosystem; and

(III)

innovative
nitrogen, phosphorus, or sediment reduction efforts; and

(ii)

give preference
to cooperative projects that involve local governments.

(h)

Total maximum
daily load

(1)

TMDL

(A)

Establishment

Not
later than December 31, 2010, the Administrator shall establish a Chesapeake
Bay-wide TMDL.

(B)

Requirements

The
Administrator shall not establish or approve a TMDL described in subparagraph
(A) unless the TMDL is developed in accordance with the requirements of section
303(d)(1)(C) of this Act, and includes—

(i)

wasteload
allocations for nitrogen, phosphorus, and sediment necessary to implement the
applicable water quality standards in the Chesapeake Bay watershed and achieve
those standards in the Chesapeake Bay and tidal tributaries;

(ii)

enforceable or
otherwise binding load allocations for all nonpoint sources, including
atmospheric deposition, agricultural runoff, and stormwater sources for which a
permit under section 402 is not required; and

(iii)

a requirement
for no net increase of nitrogen, phosphorus, and sediment loads above the
pollutant limitations necessary to meet water quality standards for the
Chesapeake Bay and tidal tributaries, including no net projected increased
pollutant levels from—

(I)

new or increased
impervious surfaces;

(II)

concentrated
animal feeding operations;

(III)

transportation
systems; and

(IV)

septic
systems.

(2)

Permits

(A)

In
general

Effective beginning on January 1, 2011, a new or reissued
permit issued by the Administrator under section 402(a) or a State authorized
to administer a permit program under section 402(b) shall include limits
consistent with all applicable wasteload allocations in the Chesapeake Bay
TMDL.

(B)

Permits

(i)

In
general

Effective beginning on January 1, 2011, each Chesapeake
Bay State shall submit to the Administrator copies of any permit for discharges
of nitrogen, phosphorus, or sediment into the Chesapeake Bay watershed that is
allowed to continue beyond 5 years pursuant to a State law analogous to section
558(c) of title 5, United States Code, not later than 60 days after the
expiration date of the permit.

(ii)

Review

The
Administrator shall have the opportunity to review and object to the
continuance of the permit in accordance with the process described in section
402(d) for permits proposed to be issued by a State.

(i)

Actions by
States

(1)

Watershed
implementation plans

(A)

Plans

(i)

In
general

Not later than May 12, 2011, each Chesapeake Bay State
shall, after providing for notice and 1 or more public hearings, adopt and
submit to the Administrator for approval a watershed implementation plan for
the portion of each of the 92 tidal water segments that is subject to the
jurisdiction of the Chesapeake Bay State that together comprise the Chesapeake
Bay.

(ii)

Targets

The
watershed implementation plan shall establish reduction targets, key actions,
and schedules for reducing, to levels that will attain water quality standards,
the loads of nitrogen, phosphorus, and sediment, including pollution
from—

(I)

agricultural
runoff;

(II)

point sources,
including point source stormwater discharges;

(III)

nonpoint source
storm­wa­ter runoff; and

(IV)

septic systems
and other onsite sewage disposal systems.

(iii)

Pollution
limitations

(I)

In
general

The tributary pollution limitations shall be the
nitrogen, phosphorous, and sediment cap loads identified in the tributary cap
load agreement numbered EPA 903–R–03–007, dated December 2003, and entitled
Setting and Allocating the Chesapeake Bay Basin Nutrient and Sediment
Loads: The Collaborative Process, Technical Tools and Innovative
Approaches, or a Chesapeake Bay TMDL established by the
Administrator.

(II)

Stringency

A
watershed implementation plan shall be designed to attain, at a minimum, the
pollution limitations described in subclause (I).

(iv)

Plan
requirements

Each watershed implementation plan shall—

(I)

include
State-adopted management measures, including rules or regulations, permits,
consent decrees, and other enforceable or otherwise binding measures, to
require and achieve reductions from pollution sources;

(II)

include programs
to achieve voluntary reductions from pollution sources, including funding
commitments necessary to implement those programs;

(III)

include any
additional requirements or actions that the Chesapeake Bay State determines to
be necessary to attain the pollution limitations by the deadline established in
this paragraph;

(IV)

provide for
enforcement mechanisms, including a penalty structure for failures, such as
fees or forfeiture of State funds, including Federal funds distributed or
otherwise awarded by the State to the extent the State is authorized to
exercise independent discretion in amounts of such distributions or awards, for
use if a permittee, local government, or any other party fails to adhere to
assigned pollutant limitations, implementation schedules, or permit
terms;

(V)

include a schedule
for implementation divided into 2-year periods, along with computer modeling to
demonstrate the projected reductions in nitrogen, phosphorus, and sediment
loads associated with each 2-year period;

(VI)

include the
stipulation of alternate actions as contingencies;

(VII)

account for how
the Chesapeake Bay State will address additional loadings from growth through
offsets or other actions; and

(VIII)

provide
assurances that—

(aa)

if
compared to an estimated 2008 baseline, the initial plan shall be designed to
achieve, not later than May 31, 2017, at least 60 percent of the nitrogen,
phosphorous, and sediment limitations described in clause (iii)(I);

(bb)

the
management measures required to achieve a 50-percent reduction of nitrogen,
phosphorous, and sediment limitations shall be in effect upon submission of the
plan;

(cc)

the
Chesapeake Bay State will have adequate personnel, funding, and authority under
State (and, as appropriate, local) law to carry out the implementation plan and
is not prohibited by any provision of Federal or State law from carrying out
the implementation plan; and

(dd)

in
a case in which a Chesapeake Bay State has relied on a local government for the
implementation of any plan provision, the Chesapeake Bay State has the
responsibility for ensuring adequate implementation of the provision.

(B)

Implementation

(i)

In
general

In implementing a watershed implementation plan, each
Chesapeake Bay State shall follow a strategy developed by the Administrator for
the implementation of adaptive management principles to ensure full
implementation of all plan elements by not later than May 12, 2025,
including—

(I)

biennial
evaluations of State actions;

(II)

progress made
toward implementation;

(III)

determinations
of necessary modifications to future actions in order to achieve objectives;
and

(IV)

appropriate
provisions to adapt to climate changes.

(ii)

Deadline

Not
later than May 12, 2025, each Chesapeake Bay State shall—

(I)

fully implement
the watershed implementation plan of the State; and

(II)

have in place all
the mechanisms outlined in the plan that are necessary to attain the applicable
pollutant limitations for nitrogen, phosphorus, and sediment.

(C)

Progress
reports

Not later than May 12, 2014, and biennially thereafter,
each Chesapeake Bay State shall submit to the Administrator a progress report
that, with respect to the 2-year period covered by the report—

(i)

includes a listing
of all management measures that were to be implemented in accordance with the
approved watershed implementation plan of the Chesapeake Bay State, including a
description of the extent to which those measures have been fully
implemented;

(ii)

includes a
listing of all the management measures described in clause (i) that the
Chesapeake Bay State has failed to fully implement in accordance with the
approved watershed implementation plan of the Chesapeake Bay State;

(iii)

includes
monitored and collected water quality data;

(iv)

includes
Chesapeake Bay Program computer modeling data that detail the nitrogen,
phosphorus, and sediment load reductions projected to be achieved as a result
of the implementation of the management measures and mechanisms carried out by
the Chesapeake Bay State;

(v)

includes, for the
subsequent 2-year period, implementation goals and Chesapeake Bay Program
computer modeling data detailing the projected pollution reductions to be
achieved if the Chesapeake Bay State fully implements the subsequent round of
management measures;

(vi)

identifies
compliance information, including violations, actions taken by the Chesapeake
Bay State to address the violations, and dates, if any, on which compliance was
achieved; and

(vii)

specifies any
revisions to the watershed implementation plan submitted under this paragraph
that the Chesapeake Bay State determines are necessary to attain the applicable
pollutant limitations for nitrogen, phosphorus, and sediment.

(2)

Issuance of
permits

(A)

In
general

Notwithstanding any other provision of this Act
(including any exclusion or exception contained in a definition under section
502), for the purpose of achieving the nitrogen, phosphorus, and sediment
reductions required under a watershed implementation plan, a Chesapeake Bay
State may issue a permit in accordance with section 402 for any pollution
source the Chesapeake Bay State determines to be necessary.

(B)

Enforcement

The
Administrator shall enforce any permits issued in accordance with the watershed
implementation plan in the same manner as other permits issued under section
402 are enforced.

(3)

Reduction of
pollution from impervious surfaces

(A)

In
general

Not later than January 1, 2013, each unit of local
government within the Chesapeake Bay watershed that discharges stormwater
through a storm sewer system, regardless of storm sewer system ownership and
without regard to the size of the population, shall obtain and comply with a
permit under section 402(p).

(B)

Requirements

A
permit under section 402(p) for a unit of local government within the
Chesapeake Bay watershed shall include requirements to ensure that a project to
develop land within the jurisdiction of such unit of local government that
affects land that is more than 1 acre in size and that is less than 5 percent
covered by impervious surfaces prior to the project is carried out in a manner
that not less than the volume of the 95th percentile precipitation event shall
infiltrate, e­va­po­tran­spi­rate from, or be harvested and used on such site
after the project is completed.

(4)

Phosphate
ban

(A)

Phosphorus in
cleaning agents

Each Chesapeake Bay State shall provide to the
Administrator, not later than 3 years after the date of enactment of the
Chesapeake Clean Water and Ecosystem
Restoration Act of 2009, assurances that within the jurisdiction,
except as provided in subparagraph (B), a person may not use, sell,
manufacture, or distribute for use or sale any cleaning agent that contains
more than 0.0 percent phosphorus by weight, expressed as elemental phosphorus,
except for a quantity not exceeding 0.5 percent phosphorus that is incidental
to the manufacture of the cleaning agent.

(B)

Prohibited
quantities of phosphorus

Each Chesapeake Bay State shall provide
to the Administrator, not later than 3 years after the date of enactment of the
Chesapeake Clean Water and Ecosystem
Restoration Act of 2009, assurances that within the jurisdiction
a person may use, sell, manufacture, or distribute for use or sale a cleaning
agent that contains greater than 0.0 percent phosphorus by weight, but does not
exceed 8.7 percent phosphorus by weight, if the cleaning agent is a substance
that the Administrator, by regulation, excludes from the limitation under
subparagraph (A), based on a finding that compliance with that subparagraph
would—

(i)

create a
significant hardship on the users of the cleaning agent; or

(ii)

be unreasonable
because of the lack of an adequate substitute cleaning agent.

(j)

Action by
Administrator

(1)

In
general

Not later than 60 days after the date of enactment of the
Chesapeake Clean Water and Ecosystem
Restoration Act of 2009, the Administrator shall establish
minimum criteria that any proposed watershed implementation plan must meet
before the Administrator may approve such a plan.

(2)

Completeness
finding

(A)

In
general

Not later than 60 days after the date on which the
Administrator receives a new or revised proposed watershed implementation plan
from a Chesapeake Bay State, the Administrator shall determine whether the
minimum criteria for the plan established under paragraph (1) have been
met.

(B)

Effect of
finding of incompleteness

If the Administrator determines under
subparagraph (A) that all or any portion of a submitted watershed
implementation plan does not meet the minimum criteria established under
paragraph (1), the Chesapeake Bay State submitting the plan shall be treated as
not having made the submission.

(3)

Approval and
disapproval

(A)

Deadline

Not
later than 90 days after determining that a watershed implementation plan meets
minimum criteria in accordance with paragraph (2)(A), the Administrator shall
approve or disapprove the plan.

(B)

Full and partial
approval and disapproval

In carrying out this paragraph, the
Administrator—

(i)

shall approve a
watershed implementation plan if the plan meets all applicable requirements
under this section; and

(ii)

may approve the
plan in part and disapprove the plan in part if only a portion of the plan
meets those requirements.

(C)

Conditional
approval

The Administrator—

(i)

may conditionally
approve a revised watershed implementation plan based on a commitment of the
Chesapeake Bay State submitting the plan to adopt specific enforceable
management measures by not later than 1 year after the date of approval of the
plan revision; but

(ii)

shall treat a
conditional approval as a disapproval under this paragraph if the Chesapeake
Bay State fails to comply with the commitment of the Chesapeake Bay
State.

(D)

Full approval
required

A new or revised watershed implementation plan shall not
be treated as meeting the requirements of this section until the Administrator
approves the entire new or revised plan.

(E)

Corrections

In
any case in which the Administrator determines that the action of the
Administrator approving, disapproving, conditionally approving, or promulgating
any new or revised watershed implementation plan was in error, the
Administrator—

(i)

may, in the same
manner as the approval, disapproval, conditional approval, or promulgation,
revise the action of the Administrator, as appropriate, without requiring any
further submission from the Chesapeake Bay State; and

(ii)

shall make the
determination of the Administrator, and the basis for that determination,
available to the public.

(F)

Effective
date

The provisions of a State watershed implementation plan
shall take effect upon the date of approval of the plan.

(4)

Calls for plan
revision

In any case in which the Administrator determines that
the watershed implementation plan for any area is inadequate to attain or
maintain applicable pollution limitations, the Administrator—

(A)

shall notify the
Chesapeake Bay State of, and require the Chesapeake Bay State to revise the
plan to correct, the inadequacies;

(B)

may establish
reasonable deadlines (not to exceed 180 days after the date on which the
Administrator provides the notification) for the submission of a revised
watershed implementation plan;

(C)

shall make the
findings of the Administrator under paragraph (3) and notice provided under
subparagraph (A) public; and

(D)

shall require the
Chesapeake Bay State to comply with the requirements applicable under the
initial watershed implementation plan, except that the Administrator may adjust
any dates (other than attainment dates) applicable under those requirements, as
appropriate.

(5)

Federal
implementation

If a Chesapeake Bay State fails to submit a
watershed implementation plan, to submit a biennial report, or to correct a
previously missed 2-year commitment made in a watershed implementation plan,
the Administrator shall, after issuing a notice to the State and providing a
90-day period in which the failure may be corrected—

(A)

notwithstanding the requirements of
sections 601(a) and 603(g) of this Act, reserve up to 75 percent of a
Chesapeake Bay State’s capitalization grant for a State water pollution control
revolving fund to be available for projects and activities authorized under
section 603(c) of this Act that are selected by the Administrator, after a
notice to the State, to be carried out within such State;

(B)

withhold all funds
otherwise available to the Chesapeake Bay State under this Act other than those
funds authorized under title VI of this Act;

(C)

develop and
administer a watershed implementation plan for that Chesapeake Bay State until
such time as the Chesapeake Bay State has remedied the plan, reports, or
achievements to the satisfaction of the Administrator;

(D)

require that all
permits issued under section 402 for new or expanding discharges of nitrogen,
phosphorus, or sediment acquire offsets that exceed by 100 percent an amount
that would otherwise be required, taking into account attenuation, equivalency,
and uncertainty; and

(E)

for the purposes
of developing and implementing a watershed implementation plan under
subparagraph (C)—

(i)

notwithstanding
any other provision of this Act (including any exclusion or exception contained
in a definition under section 502), promulgate such regulations or issue such
permits as the Administrator determines to be necessary to control pollution
sufficient to meet the water quality goals defined in the watershed
implementation plan; and

(ii)

enforce any
permits issued in accordance with the watershed implementation plan in the same
manner as other permits issued under section 402 are enforced.

(6)

Nitrogen and
phosphorus trading program

(A)

Establishment

Not
later than May 12, 2012, the Administrator, in cooperation with each Chesapeake
Bay State, shall establish an interstate nitrogen and phosphorus trading
program for the Chesapeake Bay for the generation, trading, and use of nitrogen
and phosphorus credits to facilitate the attainment and maintenance of the
Chesapeake Bay-wide TMDL for nitrogen and phosphorus.

(B)

Trading
system

The trading program established under this subsection
shall, at a minimum—

(i)

define and
standardize nitrogen and phosphorus credits and establish procedures or
standards for ensuring equivalent water quality benefits for all
credits;

(ii)

establish
procedures or standards for certifying, verifying, and enforcing nitrogen and
phosphorus credits to ensure that credit-generating practices from both point
sources and nonpoint sources are achieving actual reductions in nitrogen and
phosphorus;

(iii)

establish
procedures or standards for generating, quantifying, trading, and applying
credits to meet regulatory requirements and allow for trading to occur between
and across point source or nonpoint dischargers;

(iv)

establish
baseline requirements that a credit seller must meet before becoming eligible
to generate saleable credits;

(v)

establish
points-of-regulation at the sub-State level to facilitate trading and promote
water quality goals under which—

(I)

States may
designate point sources as points-of-regulation, but not nonpoint
dischargers;

(II)

States shall
aggregate multiple nonpoint dischargers to serve as points-of-regulation;
and

(III)

the
Administrator shall establish guidelines or standards to ensure that
points-of-regulation shall be generally consistent across States;

(vi)

ensure that
credits are used in accordance with permit requirements under the national
pollutant discharge elimination system established under section 402 and trade
requirements have been adequately incorporated into the permits;

establish
procedures or standards for providing public transparency on nutrient trading
activity;

(ix)

ensure that, if
the local receiving water is impaired for the nutrient being traded but a TMDL
has not yet been implemented for the impairment—

(I)

trades are
required to result in progress toward or the attainment of water quality
standards in the local receiving water; and

(II)

dischargers in
the watershed may not rely on credits produced outside of the watershed;

(x)

require that the
application of credits to meet regulatory requirements under this section not
cause or contribute to exceedances of water quality standards, total maximum
daily loads, or wasteload or load allocations for affected receiving waters,
including avoidance of localized impacts;

(xi)

except as part of
a consent agreement, prohibit the purchase of credits from any entity that is
in significant noncompliance with an enforceable permit issued under section
402;

(xii)

consider and
incorporate, to the maximum extent practicable, elements of State trading
programs in existence as of the date of enactment of the
Chesapeake Clean Water and Ecosystem
Restoration Act of 2009; and

(xiii)

allow for, as
appropriate, the aggregation and banking of credits by third parties.

(C)

Facilitation of
trading

In order to attract market participants and facilitate
the cost-effective achievement of water quality goals, the Administrator shall
ensure that the trading program established under this paragraph—

(i)

includes measures
to mitigate credit buyer risk;

(ii)

makes use of the
best available science in order to minimize uncertainty and related transaction
costs to traders, including the Administrator, in consultation with the
Secretary of Agriculture, supporting research and other activities that
increase the scientific understanding of nonpoint nutrient pollutant loading
and the ability of various structural and nonstructural alternatives to reduce
the loads;

(iii)

eliminates
unnecessary or duplicative administrative processes; and

(iv)

incorporates a
permitting approach under the national pollutant discharge elimination system
established under section 402 that creates a general approval for trading
avoiding the need to reopen or reissue permits to incorporate individual
trades.

(7)

Authority
relating to development

The Administrator shall—

(A)

establish and issue, for any project
affecting land that is more than 1 acre in size and that is less than 5 percent
covered by impervious surfaces prior to such project that proposes to increase
the overall percentage of impervious surfaces, guidance relating to site
planning, design, construction, and maintenance strategies to ensure that not
less than the volume of the 95th percentile precipitation event shall
infiltrate, evapotranspirate from, or be harvested and used on such site after
the project is completed; and

(B)

establish and
issue model ordinances and guidelines with respect to the construction of
low-impact development infrastructure and nonstructural low-impact development
techniques for use by States, local governments, and private entities.

(8)

Assistance with
respect to stormwater discharges

(A)

Grant
program

The Administrator may provide grants to any local
government within the Chesapeake Bay watershed that adopts the guidance,
ordinances, and guidelines issued under paragraph (7).

(B)

Use of
funds

A grant provided under subparagraph (A) may be used by a
local government to pay costs associated with—

(i)

developing,
implementing, and enforcing the guidance, ordinances, and guidelines issued
under paragraph (7); and

(ii)

implementing a
project that is designed, constructed, and maintained to meet the relative
performance standard described in subsection (i)(3)(B).

(9)

Consumer and
commercial product report

Not later than 3 years after the date
of enactment of the Chesapeake Clean Water
and Ecosystem Restoration Act of 2009, the Administrator, in
consultation with the Chesapeake Executive Council, shall—

(A)

review consumer
and commercial products, the use of which may affect the water quality of the
Chesapeake Bay watershed or associated tributaries, to determine whether
further product nutrient content restrictions are necessary to restore or
maintain water quality in the Chesapeake Bay watershed and those tributaries;
and

(B)

submit to the
Committees on Appropriations, Environment and Public Works, and Commerce,
Science, and Transportation of the Senate and the Committees on Appropriations,
Natural Resources, Energy and Commerce, and Transportation and Infrastructure
of the House of Representatives a report detailing the findings of the review
under subparagraph (A).

(k)

Prohibition on
introduction of Asian oysters

Not later than 2 years after the
date of enactment of the Chesapeake Clean
Water and Ecosystem Restoration Act of 2009, the Administrator
shall promulgate regulations—

(1)

to designate the
Asian oyster as a biological pollutant in the Chesapeake Bay and
tidal waters pursuant to section 502;

(2)

to prohibit the
issuance of permits under sections 402 and 404 for the discharge of the Asian
oyster into the Chesapeake Bay and tidal waters; and

(3)

to specify
conditions under which scientific research on Asian oysters may be conducted
within the Chesapeake Bay and tidal waters.

(l)

Effect on other
requirements

(1)

In
general

Nothing in this section removes or otherwise affects any
other obligation for a point source to comply with other applicable
requirements under this Act.

(2)

Violations by
States

The failure of a State to submit a watershed
implementation plan or biennial report, or to correct a previously missed
2-year commitment made in a watershed implementation plan, by the applicable
deadline established under this section shall—

(A)

constitute a
violation of this Act; and

(B)

subject the State
to—

(i)

enforcement action
by the Administrator; and

(ii)

civil actions
commenced pursuant to section 505.

(3)

Failure of
Administrator to act

The failure of the Administrator to act
under this section shall subject the Administrator to civil actions commenced
pursuant to section 505.

(m)

Evaluation by
the Inspector General

The Inspector General of the Environmental
Protection Agency shall evaluate the implementation of this section on a
periodic basis of not less than once every 3 years.

(n)

Authorization of
appropriations

(1)

Implementation
and monitoring grants

(A)

Authorization of
appropriations

In addition to amounts authorized to be
appropriated or otherwise made available to carry out this section, there are
authorized to be appropriated to the Administrator—

(i)

to
provide implementation grants under subsection (e)(3)(A), $80,000,000 for each
of fiscal years 2010 through 2015, to remain available until expended;

(ii)

to carry out a
freshwater monitoring program under subsection (e)(3)(B), $5,000,000 for each
of fiscal years 2010 through 2015; and

(iii)

to carry out a
Chesapeake Bay and tidal water monitoring program under subsection (e)(3)(B),
$5,000,000 for each of fiscal years 2010 through 2015.

(B)

Cost
sharing

The Federal share of the cost of a program carried out
using funds from a grant provided—

(i)

under subparagraph
(A)(i) shall not exceed 50 percent; and

(ii)

under clause (ii)
or (iii) of subparagraph (A) shall not exceed 80 percent.

(2)

Chesapeake
stewardship grants

There is authorized to be appropriated to
carry out subsection (g)(2) $15,000,000 for each of fiscal years 2010 through
2014.

(3)

Stormwater
pollution planning and implementation grants

(A)

Authorization of
appropriations

In addition to amounts authorized or otherwise
made available to carry out this section, there are authorized to be
appropriated to the Administrator—

(i)

to
carry out subsection (j)(8)(B)(i), $10,000,000; and

(ii)

to carry out
subsection (j)(8)(B)(ii), $1,500,000,000.

(B)

Cost-sharing

A
grant provided for a project under—

(i)

subsection
(j)(8)(B)(i) may not be used to cover more than 80 percent of the cost of the
project; and

(ii)

subsection
(j)(8)(B)(ii) may not be used to cover more than 75 percent of the cost of the
project.

(4)

Limitation on
administrative expenses

Not more than 10 percent of the annual
amount of any grant provided by the Administrator or Secretary under any
program described in paragraphs (1), (2), or (3) may be used for administrative
expenses.

(5)

Availability

Amounts
authorized to be appropriated under this subsection shall remain available
until
expended.

.

4.

Nonpoint source
management programs

Section
319(j) of the Federal Water Pollution Control Act (33 U.S.C. 1329) is amended
by striking not to exceed $70,000,000 and all that follows
through the period and inserting $500,000,000 for each of the fiscal
years 2010 through 2015..